Draft Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking.
||Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
||23 May 2001|
|Forwarded to the Council:
||27 June 2001|
|Deposited in Parliament:
||16 July 2001|
|Basis of consideration:
||EM of 9 October 2001
|Previous Committee Report:
|To be discussed in Council:
||No date set|
||Legally and politically important
||Not cleared; further information requested
3.1 At the Tampere European Council in October
1999, Member States agreed on a commitment to establish common
definitions and penalties for a number of offences, including
drug trafficking. The European Union's Action Plan on Drugs (2000-2004)
calls on the Commission to propose measures aimed at introducing
minimum rules on the constituent elements of and penalties for
trafficking in illegal drugs.
3.2 The draft Framework Decision defines drug
trafficking and related offences, and provides for maximum penalties
of not less than five years' imprisonment in serious cases. The
Framework Decision also provides for a number of aggravating and
mitigating circumstances to be taken into account in sentencing,
for the liability of legal persons, and for the making of rules
3.3 The definition of trafficking is set out
in Article 1. It defines 'illicit drug trafficking' as:
"The act, without authorisation,
of selling and marketing as well as, for profit, of cultivating,
producing, manufacturing, importing, exporting, distributing,
offering, transporting or sending or, for the purpose of transferring
and for profit, of receiving, acquiring and possessing drugs".
3.4 The intention therefore appears to be to
exclude users who produce, acquire or possess drugs for personal
use, as well as users who pass on drugs with no profit-making
motive. The Commission's Explanatory Memorandum describes the
notions of acting 'for profit' and 'without authorisation' as
essential criteria in the definition.
3.5 "Drugs" are defined in Article
1(2) as being any of the substances covered by the UN Single Convention
on Narcotic Drugs 1961 (as amended by the 1972 Protocol), the
1971 Vienna Convention on Psychotropic Substances and the 1988
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, as well as the substances subject to controls under
Joint Action 97/396/JHA of 16 June 1997.
It therefore includes drugs which are classed as class A, B or
C under the Misuse of Drugs Act 1971 and covers precursor chemicals
used to produce illicit drugs.
3.6 Article 2 requires Member States to take
the necessary measures to make illicit drug trafficking a criminal
offence, and Article 3 provides for incitement, aiding and abetting
and attempts also to be made criminal.
3.7 Article 4 provides for penalties. It requires
Member States to provide for maximum sentences of not less that
five years' imprisonment in 'serious' cases. 'Serious' is not
defined. The Article also requires provision to be made for confiscation
of drugs, of the means used to traffick them and for confiscation
of the proceeds of trafficking as well as the 'advantages directly
or indirectly derived' from that trafficking.
3.8 Article 5 requires Member States to provide
for a maximum sentence of not less than seven years' imprisonment
where the offence is committed in one of a number of 'aggravating
circumstances'. These include being part of an organised criminal
group, use of weapons or violence, trafficking in or near schools,
youth clubs, leisure centres and drug treatment and rehabilitation
centres. They also include the case where a doctor, pharmacist,
court official, police officer, customs officer, prison officer,
probation officer, teacher, instructor or person working in an
educational establishment abuses his position to commit the offence.
The fact that an offender has been previously convicted of a similar
offence in any Member State is also to be treated as an aggravating
3.9 Article 6 requires Member States to provide
for mitigating circumstances, so as to ensure that the penalties
referred to in Article 4 can be reduced if the offender has supplied
the competent authorities with information about the identity
of other offenders or has helped to identify drug-dealing networks.
3.10 Articles 7 and 8 provide, respectively,
for liability and penalties in relation to legal persons. 'Legal
person' is defined in Article 1(3) as 'any entity having this
status by virtue of the applicable national law, with the exception
of States or other public bodies exercising their public service
mandate and international public organisations'.
3.11 Article 7(1) requires Member States to ensure
that legal persons can be made criminally liable where the offence
of drug trafficking is committed for their benefit by any person
who has a 'power of representation' of the legal person, or who
has an 'authority to take decisions' or 'an authority to exercise
control' in relation to the legal person. Article 7(2) requires
Member States to ensure that a person 'can be held liable where
the lack of supervision or control by that legal person made possible'
the commission of the offence by an employee or subordinate for
the benefit of that legal person.
3.12 Article 9 provides for jurisdiction and
requires Member States to make rules to establish jurisdiction
where the offence is committed entirely or partly within their
territory. In addition, Member States are to make rules to establish
jurisdiction where the offender is a national or where the offence
is committed for the benefit of a legal person established in
that Member State. However, in these latter cases, Member States
may decide not to make such rules or to limit their application
to specific cases or circumstances. Those Member States which
do not extradite their own nationals are required by Article 9(3)
to establish jurisdiction over their own nationals where the offence
is committed outside their territory.
3.13 Articles 10 to 12 provide for cooperation
between Member States, implementation, reports and entry into
The Government's views
3.14 In his Explanatory Memorandum the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
assesses the policy implications of the proposal in these terms:
"Our initial view is
that the proposed definitions of drug trafficking offences in
the Framework decision, whilst very comprehensive in their remit,
are generally appropriate and acceptable. They are likely to be
largely compatible with our existing definitions and those that
will be included in the Proceeds of Crime Bill. There are some
gaps in UK legislation to be filled in order to be fully compliant
with the definitions. For example, the unauthorised import or
export of benzodiazepines (drugs listed in the UN Convention)
is not currently a criminal offence in the UK. However, action
is in hand to bring in controls in these areas. Other difficulties
may emerge as legal experts clarify and negotiate the definitions,
particularly relating to offences by legal entities.
"With regard to the proposals on common penalties,
our view is that the Framework Decision fails to provide sufficiently
dissuasive penalties for large scale drug trafficking in the most
harmful drugs. The proposed maximum penalty of 5 years (7 years
with aggravating circumstances) applies only to cases which are
deemed "serious". Although the accompanying commentary
includes some guidelines as to what may be deemed serious, these
guidelines have no legal basis. Ultimately, it is left to Member
States to use their discretion as to what they regard as 'serious'.
This may lead to widely differing interpretations, defeating the
objective to have common maximum sentences.
"The levels of penalty proposed are disappointingly
low. The proposed maximum sentence of 5 years imprisonment for
serious drug trafficking, and 7 years where there are aggravating
circumstances, compares to a current maximum sentence in the UK
of life imprisonment for trafficking in class A drugs such as
heroin and cocaine, and 14 years for class B drugs such as amphetamines
"In addition the penalties of 5/7 years do not
compare well with other recently negotiated instruments. The EU
has already agreed to minimum maximum penalties of 8 years for
counterfeiting offences (including counterfeiting the euro) and
8 years for facilitation of illegal immigration. When the penalty
for facilitation was agreed a number of Member States, including
the UK, declared that they would apply a minimum maximum penalty
of 10 years.
"To summarise, we believe that the penalties
proposed would add little if any value in our fight against drug
trafficking in the EU. Indeed they might send a message that [Member
States] were softening their approach to criminals who deal for
example in large quantities of heroin or cocaine. We believe that
a number of other countries share our concerns. Indeed, the Commission's
research study showed that for the most serious forms of drug
trafficking, for example as part of an organised criminal group
or involving large quantities of harmful substances, almost all
other Member States have a maximum penalty available of at least
10 years and many considerably higher. We therefore intend to
lobby EU partners to join with us in calling for much higher minimum
maximum penalties, in the order of 10-12 years."
3.15 We note that this proposal is at an early
stage of negotiation and we are grateful for the Minister's undertaking
to keep us informed of any substantial amendments. In the meantime,
we ask the Minister for his comments on the following points.
3.16 The definition of "illicit drug
trafficking" in Article 1 depends, at least in part, on the
notion of profit, but this is not required under the 1988 United
Nations Convention against Illicit Traffic in Narcotic Drugs,
or under the Misuse of Drugs Act 1971. The Framework Decision
therefore appears to have a narrower scope than existing instruments
on drug trafficking.
3.17 We note that the proposal contains elaborate
provisions on aggravating and mitigating circumstances to be taken
into account in sentencing, but that no attempt has been made
to define what is meant by 'serious' for the purposes of the minimum
sentence of five years under Article 4(1). We would be grateful
to know if the Minister intends to put forward any proposals in
3.18 The meaning of Article 5(1)(c) (under
which an aggravating circumstance arises where the offence involves
'persons who are unable to exercise their free will') is far from
clear, and we ask the Minister to explain the scope of this provision,
in particular as to whether its effect is to make in all cases
the supply to drug addicts an aggravated circumstance.
3.19 Article 5(1)(e) sets out a somewhat random
list of offices for the purposes of determining whether an aggravating
circumstance arises. The list excludes some medical professionals,
such as nurses and psychiatrists, and many holders of public office.
We would be grateful for the Minister's views on the purpose of
this provision, and on whether it would be more appropriate to
refer generally to abusing a position of trust, or to the provision
in Article 5(e) of the 1988 United Nations Convention (which refers
to offences connected with the holding of public office).
3.20 We note that the grounds of jurisdiction
under Article 9 appear to be narrower than those provided for
under the law of the United Kingdom, or under the 1988 United
Nations Convention. We would be grateful if the Minister would
confirm that the adoption of the Framework Decision in its present
form would not prevent the United Kingdom from maintaining its
broader rules of jurisdiction, or from becoming party to international
conventions, such as those adopted under the auspices of the United
Nations, which have more extensive rules of jurisdiction.
3.21 We shall hold the present document under
scrutiny pending the Minister's reply.
7 The 1988 UN Convention against Illicit Traffic in
Narcotic Drugs refers to manufacture, production, supply etc.
on any terms whatsoever. The offence under s.4(1) Misuse
of Drugs Act 1971 is committed when a person supplies or offers
to supply a controlled drug to another. The making of a 'profit'
is not an ingredient of the offence. Back
No. L 167, 25.6.1997, p.1. Back
The 1988 UN Convention is wider in this regard, since it refers
to the holding of a public office by the offender and the connection
of the offence with the office in question. Back
requirements seem narrower than those under e.g. the 1988 UN Convention
which, inter alia, requires jurisdiction to be established
over non-nationals who have their habitual residence in the national
territory. See also the definition of 'drug trafficking' in s.1
Drug Trafficking Act 1994. Back